Secretary of State rejects plans for up to 1600 dwellings in Braintree, NPPF para 170 on valued landscapes is considered

12.07.2019

The case

The Secretary of State has recently dismissed Acorn Braintree Ltd's appeal concerning a proposal for up to 1600 dwellings and associated development on approximately 56.5ha of land on the edge of Braintree, Essex.

The Secretary of State concluded that Braintree did not have a 5-year housing land supply, once he had removed sites without planning permission (as not being 'deliverable'), and some sites with outline permission, from the Council's trajectory.

Although the tilted balance was engaged, the Secretary of State agreed with his Inspector that the adverse impacts to a grade II listed building and to the character and appearance of the area (including landscape character and the loss of separation between Braintree and the village of Rayne) significantly and demonstrably outweighed the benefits of the proposal.

Implications

Of particular interest to practitioners will be the way the decision deals with the approach to valued landscapes under paragraph 170(a) of the revised NPPF.

The position under the original version of the NPPF was that landscape did not have to be designated in order to be 'valued'. In Stroud DC v SSCLG [2015] EWHC 488 (Admin), Ouseley J said that "designation is used when designation is meant and valued is used when valued is meant and the two words are not the same". The focus for appeals, following that and other related judgments, was on identifying 'demonstrable physical attributes' going beyond mere popularity.

The policy wording was amended in the second (July 2018) and third (February 2019) versions of the NPPF, and paragraph 170(a) now provides that valued landscapes should be protected and enhanced "in a manner commensurate with their statutory status or identified quality in the development plan".

In this case, the landscape had neither statutory status nor identified quality in the development plan. Did it follow that paragraph 170(a) conferred no protection at all?

The Council argued that undesignated landscapes still needed to be considered on a case by case basis. According to paragraph 170(a) it was the manner and not the fact of protection that had to be commensurate with the landscape's designated status. The Inspector did not accept this argument, saying:

"A straightforward reading of paragraph 170(a) does not lead to the view that there are other categories of valued landscape (which are not statutorily designated or identified in a development plan). As the appeal site does not meet the requirements of paragraph 170(a) ... I find that it is not a valued landscape" (IR 185).

The Secretary of State agreed with the Inspector's reasons (DL 16), although he did not comment specifically on the interpretation point.

This decision signifies that the previous approach, based on the Courts' interpretation of the old para 109 NPPF, is unlikely to be followed by decision makers applying the current version of the NPPF. The identification of a valued landscape is now much more straightforward – if there is no statutory status (e.g. National Parks and AONBs or designation in an adopted plan), the landscape is not valued and does not benefit from the protection of para 170(a) NPPF. The physical attributes of the area need not be considered in the evidence. It clearly follows that fewer landscapes will benefit from the protection of para 170(a).